Opinion
Case No.: 16cv1107-LAB-BGS
07-14-2017
Susie V. Scales, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION: DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [ECF No. 18] AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [ECF No. 19]
I. INTRODUCTION
On May 7, 2016, Plaintiff Susie V. Plaintiff ("Plaintiff") filed a complaint pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), challenging the Commissioner of the Social Security Administration's ("Commissioner") denial of disability benefits and supplemental social security income. (ECF No. 1.) On August 5, 2016, the Commissioner filed an answer. (ECF No. 13.) On September 16, 2016, Plaintiff filed a motion for summary judgment, requesting reversal of the Administrative Law Judge's ("ALJ") final decision. (ECF No. 18.) Specifically, Plaintiff seeks reversal of the ALJ's denial or, in the alternative, remand for further administrative proceedings on the basis that the ALJ failed to articulate legally sufficient reasons for rejecting Plaintiff's pain and limitation testimony. (Id.)
In her Motion for Summary Judgment, Scales also sought reversal of the ALJ's denial, or in the alternative remand, because the ALJ failed to provide any reason to reject the standing and walking limitations of medical expert Harvey Alprin, M.D. who testified during the ALJ Hearing. (ECF No. 18 at 10-11.) However, in subsequent briefing, Scales "concedes that the ALJ's failure to include the 2-hour standing limitation in the [Residual Functional Capacity] was harmless error." (ECF No. 22 at 6 n.2.) Accordingly, the Court does not address this basis for reversal, or in the alternative, request for remand.
On October 14, 2016, the Commissioner filed a cross-motion for summary judgment and a response in opposition to Plaintiff's motion. (ECF. Nos. 19 and 20.) The Commissioner argues that the ALJ's decision was supported by substantial evidence, is free from legal error, and should be affirmed. Id. On October 30, 2016, Plaintiff filed a reply in support of her motion for summary judgment and in opposition to the Commissioner's cross-motion for summary judgment. (ECF No. 22.)
Pursuant to Civ. L.R. 7.1(d)(1), the Court finds the parties' cross-motions suitable for decision on the papers and without oral argument. After careful consideration of the administrative record and the applicable law and for the reasons discussed below, the Court recommends that Plaintiff's motion for summary judgment be DENIED and that Commissioner's cross-motion for summary judgment be GRANTED.
II. LEGAL STANDARDS FOR DETERMINATION OF DISABILITY
In order to qualify for disability benefits, an applicant must show that: (1) he or she suffers from a medically determinable physical or mental impairment that can be expected to result in death, or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C. §§ 423(d)(1)(A), (2)(A). An applicant must meet both requirements to be "disabled." Id. The applicant has the burden to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The Secretary of the Social Security Administration set forth a five-step sequential evaluation process for determining whether a person has established his or her eligibility for disability benefits. Keyser v. Comm'r, 648 F.3d 721, 724 (9th Cir. 2011); see 20 C.F.R. §§ 404.1520, 416.920. Each step is potentially dispositive. The five steps in the process are as follows:
1. Is the claimant presently performing a "substantially gainful activity"? If so, then the claimant is not disabled within the meaning of the Social Security Act. If not, proceed to step two. See 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(b).See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
2. Is the claimant's impairment severe? If so, proceed to step three. If not, then the claimant is not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(c).
3. Does the impairment "meet or equal" one or more of the specific impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. If not, proceed to step four. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(d).
4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled. If not, proceed to step five. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(e), (e), 416.920(e).
5. Is the claimant able to do any other work? If so, then the claimant is not disabled. If not, then the claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(f), 416.920(f).
In steps one through four, the claimant bears the burden of proof to establish that he is disabled. Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996); see Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (finding that the claimant bears the burden "to establish [his] entitlement to disability insurance benefits" at all times). At step five, the Commissioner bears the burden of proof to demonstrate that the claimant is not disabled. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (stating that the burden shifts to the Commissioner at step five to show that claimant can do other kinds of work). The Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy by "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R. § 404.1566 (describing "work which exists in the national economy"). If the Commissioner meets this burden, then the claimant is not disabled. Bustamante, 262 F.3d at 954. However, if the Commissioner fails to meet this burden, then the claimant is disabled. Id.
III. BACKGROUND
On February 5, 2013 Plaintiff filed an application under Title II for a period of disability and disability insurance benefits and an application under Title XVI for supplemental security income, alleging disability beginning June 24, 2012. (Administrative Record ["AR"] 255-262.) Plaintiff's claims were denied initially on April 24, 2013, (AR 61-84), and upon reconsideration on September 23, 2012, (AR 85-112).
Subsequently on January 2, 2013, Plaintiff requested a de novo hearing before an ALJ. (AR 130.) On November 13, 2014, the ALJ, Keith Dietterle conducted a hearing ("ALJ Hearing"). (AR 34-60.) Plaintiff appeared, represented by David Shore. (AR 36.) Connie Guillory, an impartial vocational expert ("VE"), and Dr. Harvey L. Alpern, an impartial medical expert, also testified. (AR 36.) In a decision dated January 5, 2015, the ALJ found that Plaintiff was not disabled as defined by the Social Security Act. (AR 13-33.) When the Appeals Council declined to review the ALJ's decision on March 17, 2016, the ALJ's decision became the final decision of the Commissioner. (See AR 1-4.) Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).
A. Adult Function Report
In her Adult Function Report dated April 8, 2013, Plaintiff stated that she is "unable to sit, stand, walk or bend for any length of time. Unable to get on ground and get up again. Use of cane at times due to left sided sciatica and back pain of lower back. Shortness of breath with minimal movement or exercise. Bilateral foot unsteadiness due to neuromas." (AR 301.) Plaintiff stated that from the time she wakes until she goes to bed she "sit[s] in recliner and watch[es] T.V. [She completes] simple household chores and shopping [and] play[s] with [her] grandkids." (AR 301.) She is able to prepare meals daily, although she notes that it takes her longer to do things than it used to. (AR 303.) She is able to dust, do dishes, and scrub counters and sinks daily. She is able to do her laundry and shop for groceries and personal items once a week. (AR 303.) Further, she is able to watch T.V., listen to music, sew, craft, play games, talk on the phone, and visit friends and family daily. (AR 305.) She stated her condition has "limited [her] walking, standing, sitting, and lifting." (AR 305.) She has to lift less than ten pounds, cannot squat or kneel, and is short of breath if walking or climbing stairs. (AR 306.) She listed that the only medication she was taking at the time that had adverse side effects was HCZT (water pills). (AR 308.)
IV. HEARING BEFORE THE ALJ
A. Plaintiff's Testimony
At the November 13, 2014 ALJ Hearing, Plaintiff testified that she was born on February 6, 1950, making her 64 years old at the time of the hearing. She is a high school graduate who completed a year of college. Plaintiff testified that she last worked on July 6, 2012. (AR 40.) At that time, she was employed as a caregiver, taking care of elderly clients by dressing them, bathing them, moving them, cooking for them, driving them to appointments, and at times living with them. (AR 41-42.) She told the ALJ that she stopped working in 2012 because she had to have her foot operated on due to her difficulty walking. (AR 42) Prior to working as a caregiver, Plaintiff worked as medical receptionist from 1971 to 2005 in various hospital and doctors' offices. She completed paperwork, kept track of files, and carried 15 to 20 pound boxes of copied papers. (AR 42-43.)
Plaintiff told the ALJ she can sit for 10 minutes and stand for 15 minutes. Since her fall a few weeks prior to the ALJ Hearing, she has been using a cane. She is able to walk a city block. She testified that she lives by herself, cooks for herself, cleans, and does her own laundry. She has not driven recently as she no longer owns a car.
She testified she is borderline diabetic and is no longer on medication for diabetes. She is five foot five inches and weighs 290 pounds. She told the ALJ her weight fluctuates from 320 to under and that she lost weight over the past year by adjusting her diet and walking. Plaintiff testified that in September 2014 she had an angioplasty in which doctors inserted a stent. Since the stent, she no longer has arm pain. (AR 47-48.)
Plaintiff testified that she sleeps on and off during the day in her recliner. During the day she "just watch[es] the TV and do[es] things [she has] to do," such as going to doctors appointments. (AR 49.) She testified that she sometimes cannot get up from the toilet because of her back. Plaintiff told the ALJ she is on medication for anxiety. (AR at 50-51.) She testified she does not think she could go back to work as a caregiver because she is unable to lift patients anymore. (AR 50.) She also stated she could not return to the medical receptionist job because she cannot sit and stand that much anymore. Also, she expressed concern about the lifting. (AR 50-51.) Plaintiff told the ALJ she does not think there is any eight hour/five day a week job she could do because of her back - she has a "bulging disc with two compression discs on it." (AR 51.) She has not had surgery on her back because she is concerned of the risk of paralysis. (Id.)
When the ALJ asked Plaintiff about her average physical pain, she testified that her pain on a scale of 0 to 10 is a 10, with a 10 "being so bad that [she]'d have to go to the emergency room." She stated that her pain level is a 10 unless she takes "pain pills." Plaintiff testified she "can't live on those because they mess[ ] up your kidneys." She stated the lower back pain is severe and constant. (AR 52.) Finally, Plaintiff testified that she has mild COPD and uses inhalers but not oxygen. (AR 53.)
B. Medical Expert Testimony
The ALJ also called Medical Expert Dr. Harvey Alpern, to testify. (AR 54.) Dr. Alpern testified that he has never seen Plaintiff as a patient but he has reviewed her medical file in the case. (AR 54.) Specifically he testified that she had the following medically determinable impairments: "Coronary artery disease, status post procedure for it, with no clear indication of current activity. She has shortness of breath, likely related to morbid obesity with a BMI of 50. We have hypothyroid control, diabetes control. There's an alleged diabetic neuropathy, which is not well demonstrated. And you have degenerative disc disease of the back with some changes seen on MRI 5-F." (AR 54.) Further, Dr. Alpern opined that, "She does not meet or equal a listing." (AR 54.)
Dr. Alpern further testified that Plaintiff's recent angioplasty would not change his opinion that her impairments would not meet or equal a listing. (AR 56.) However, he placed the following restrictions over her: "lift 20 pounds occasionally, 10 pounds frequently; stand or walk two out of eight hours; sit six out of eight hours; and only occasionally postural; no ropes or ladders." (AR 56.)
C. Vocational Expert Testimony
The ALJ also called Vocational Expert Connie Guillory ("VE") to testify. (AR 57.) The VE testified as to Plaintiff's past work and stated that Plaintiff's position as a receptionist (237.367-038) is classified as sedentary and semi-skilled. However, the VE told the ALJ that as Plaintiff reported the position in the case file and at the hearing, "[she] did more lifting to the light level." (AR 57) The VE further testified that Plaintiff's position as a home attendant (354.377-014) is classified as medium and semi-skilled, and that as she reported to have performed it "it would be at the very heavy level." (AR 57.)
The ALJ asked the VE four hypotheticals to determine whether an individual would be able to return to either the receptionist or home attendant positions "who is closely approaching retirement age, with a 12th grade education, is literate, speaks English, and the work experience as outlined by [the VE]."
In the first hypothetical, "the person can sit six hours in an eight hour day; stand and walk only two hours in an eight hour day; can occasionally can lift 20 pounds and frequently lift 10 pounds; can occasionally climb stairs; never climb ladders, scaffolds, ropes; occasionally balance, stoop, kneel, crouch and crawl. [They] should have no concentrated exposure to unprotected heights, dangerous or fast-moving machinery; should have no concentrated exposure to dust, fumes, and gases; should not work with vibrating tools; should have no concentrated exposure to working with vibrating tools or riding on vibrating equipment." (AR 57-58.)
Under the first hypothetical, the VE testified Plaintiff would be able to return to the receptionist position both per the Dictionary of Occupational Titles and per the manner in which she actually performed the job. (AR 58.) Under the second hypothetical, in which the aforementioned description was altered so that the individual "can [only] occasionally lift 10 pounds, frequently lift less than 10 pounds," the VE testified that the individual would still be able to do the receptionist job as generally performed, but not as actually performed. (AR 58.) Under the third hypothetical, in which the criteria under the first hypothetical remained in place but the person would be off task 20 percent of the day due to pain, the VE testified that the individual would not be able to do the receptionist job or "sustain competitive employment." (AR 59.) Under hypothetical number four, the VE testified that an individual who misses three or more work days per month due to pain would not be employable. (AR 59.)
Further, in response to a hypothetical proffered by Plaintiff's counsel, the VE testified that under the circumstances outlined in the first hypothetical plus the added fact that due to "situational depression and anxiety combined with the pain, this person was limited to unskilled work activity at the SVP 1 or 2 level," none of the past relevant work would be performable. (AR 59.)
V. ALJ's Findings
On January 5, 2015, the ALJ issued his decision denying Plaintiff's application for a period of disability and disability insurance benefits as well as her application for supplemental social security income. (AR 26.) In arriving at his decision, the ALJ applied the Commissioner's five-step sequential disability determination process set forth in 20 C.F.R. § 416.920(a). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the relevant period. Accordingly, the ALJ found that Plaintiff satisfied step one. (AR 18.)
At step two, the ALJ found that Plaintiff suffered from the following severe impairments: (1) coronary artery disease; (2) morbid obesity; (3) lumbar spine degenerative disc disease; and (4) chronic kidney disease. Thus, with regard to Plaintiff's listed severe impairments, the ALJ found that Plaintiff satisfied step two. (AR 18-19.) The ALJ found that Plaintiff's alleged impairments due to hypothyroidism, hyperlipidemia, diabetes, Morton's neuromas, and anxiety and depression ("affective disorder") were non-severe. (AR 19-20.) The ALJ noted the following regarding Plaintiff's impairments:
Diagnostic imaging reveals minimal findings. On December 24, 2012, lumbosacral spine x-rays revealed severe disc degeneration and facet arthrosis at L4 to L5 and moderate disc height narrowing and facet arthrosis at L5 to S1. (5F/60) On January 25, 2013, claimant had a magnetic resonance imaging ("MRI") that revealed congenitally short pedicles. It showed chronic disc degeneration and facet arthrosis at L3 to L4 and at L4 to L5. It showed spinal stenosis at L4 to L5 with borderline spinal stenosis at L3 to L4. There was considerable left foraminal stenosis at L4 to L5. There were also no acute findings, including fracture bony destructive change. (22F) On April 10, 2013, claimant had a bilateral renal ultrasound performed. The ultrasound showed no hydronephrosis, a very small post void residual and cholelithreasis. (18F) On October 22, 2014, claimant had lumbar spine x-rays performed. These x-rays revealed L4 to L5 spondylosis and age indeterminate mild interior height loss at the L3 vertebral body. (25F) On the same date, claimant had a pelvis x-ray that revealed no acute osseous abnormality. (24F) On September 5, 2014, claimant had an echocardiograph performed findings included an ejection fraction 57%. It also showed a normal left ventricular size and contract ability. It further showed mild left ventricular hypertrophy with no evidence of left ventricular dialostic dysfunction. It showed no significant valvular disease.
(AR 19.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments under medical listing 20 C.F.R. Part 404, Appendix 1 to Subpart P. (AR 21.) Specifically, the ALJ considered obesity in connection with other impairments and their applicable listing despite there being no listing criteria specific to the evaluation of obesity impairments. (AR 21.) The ALJ, therefore, proceeded to step four. (AR 21.)
The fourth and fifth steps require the ALJ to determine how the claimant's impairments affect the claimant's ability to perform work. To make this determination, the ALJ formulates the claimant's Residual Functional Capacity ("RFC") assessment. The RFC is used at step four of the sequential evaluation process to determine whether an individual is able to do past relevant work. See 20 C.F.R. § 404.1545(a)(1) (defining an RFC as "the most [a claimant] can still do despite [his or her] limitations"). An RFC is used "at step five to determine whether an individual is able to do other work, considering his or her age, education, and work experience." Social Security Ruling ("SSR") 96-8p.
Here, the ALJ found Plaintiff had the RFC to perform "light work as defined in 20 CFR § 404.1567(b) and § 416.967(b) except [Plaintiff] could never climb ropes, ladders or scaffolds; occasionally could climb ramps and stairs, could balance, could stoop, could kneel, could crouch and could crawl; could have no concentrated exposure to unprotected heights, dangerous or fast moving machinery; should have no concentrated exposure to duct, fumes and gases; should have no concentrated exposure to working with vibrating tools for writing on vibrating equipment." (AR 21.) The ALJ noted that "in making this finding, the undersigned has considered all symptoms and the extent to which these symptoms can be reasonably accepted as consistent with the objective medical evidence and other evidence." (AR 21.)
Pursuant to both 20 C.F.R. § 404.1567(b) and § 416.967, light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time."
In developing the RFC, the ALJ found Plaintiff's statements "not entirely credible" with respect to the intensity, persistence and limiting effects of her allegedly disabling impairments. (AR 22.) First, the ALJ found that Plaintiff's allegations regarding the severity of her physical symptoms and limitations were "not supported by the objective clinical findings and observations contained in the record." (AR 22.) The ALJ explained in his decision:
Physical examination by claimant's treating physician showed a normal heart rate and rhythm. Claimant's balance and gait were intact and her deep tendon reflexes were preserved and symmetric. Additionally, claimant's balance and gait were intact. (5F; 7F; 10F) While claimant's treatments records showed
pain complaints, the physical examinations yield minor findings. For example, on May 5, 2012, claimant was released to light work following a motor vehicle accident. Claimant's physical examination noted lumbar spine tenderness with moderate pain accompanied by motion, but she had full range of motion in her both shoulders and knees. Additionally, the treatment records noted claimant stated "I am fine. I am still a little sore." (5F/40) On December 21, 2012, treatment records noted that while claimant complained of low back pain, over-the-counter medication and rest relieved symptoms. The treatment record noted claimant described the low back pain as an ache and numbness. The treatment record also noted mild pain with motion. (5F/27) On October 22, 2014, treatment records noted claimant was able to ambulate with a steady gait had no external sig of trauma. An x-ray of her lumbosacral spine showed mild loss, but there was not an acute fracture. Treatment notes stated claimant was quite reassured by the imaging studies and felt comfortable with discharge home. (27F/2) Additionally, the residual functional capacity has incorporated any limitations due to degenerative disc disease.
(AR 22.) Additionally, the ALJ found that Plaintiff's alleged impairments "do not significantly interfere with her activities of daily living." He noted that:
Claimant stated she is able to drive, use public transportation and walk. She is able to leave home without assistance, is able to shop for groceries and personal items. Claimant stated she is able to manage her personal finances. Claimant stated she is able to perform simple household choirs, specifically she is able to dust, do laundry, wash dishes and scrub countertops and sinks. Claimant stated he[r] son cleans. Claimant stated she is able to prepare simple meals. Claimant stated she is able to handle activities of personal care. (4E) Although the claimant has described daily activities, which are limited, two factors weigh against considering these allegations to be strong evidence in favor of finding the claimant disabled. First, allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty. Secondly, even if the claimant's daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant's medical condition as the alleged severity is not documents throughout the record.
(AR 23.) The ALJ also considered Plaintiff's course of conservative treatment of over-the-counter pain medication and a suggestion to attend physical therapy. (AR 23.) Given the Plaintiff's alleged severity of pain and limitation, the ALJ concluded that "one would expect more significant findings on both the diagnostic imaging and physical exams as well as more complex treatment." (AR 23.)
Further, the ALJ considered Plaintiff's coronary artery disease and that although she required another stenting procedure in September 2014, her "treatment records note[d] that [she] recovered well" and that in October 2014 she "denied any chest discomfort, palpitations, presyncope or syncope." (AR 23.)
In developing Plaintiff's RFC, the ALJ considered opinion evidence from several medical professionals: testimony from medical expert Dr. Harvey Alpern, medical consultant Dr. Richard Alley's physical RFC assessment, consultative examiner Dr. Robin Rose's report, the state agency medical consultants' opinions, and the state agency psychological consultants' opinions. (AR 23-25.)
The ALJ assigned partial weight to Dr. Alpern's opinion testimony given at the ALJ Hearing detailed above. The ALJ agreed with Dr. Alpern's opinion regarding limitations placed on Plaintiff's ability to "lift, carry, sit, stand, walk, climb, balance, stoop, kneel, crouch and crawl because it is consistent with the objective evidence of record and the entirety of the record[,]" specifically that "diagnostic imaging [ ] showed degenerative disc disease and facet arthrosis" and her "obesity contributes to these limitations in that her body habits makes performing these functions difficult." (AR 24.) However, the ALJ disagreed with Dr. Alpern's opinion regarding Plaintiff's ability to be exposed to unprotected heights, dangerous or fast moving machinery; exposure to dust, fumes and gases; exposure to working with vibrating tools or riding on vibrating equipment" because the ALJ believed Plaintiff to be more limited than as opined by Dr. Alpern given her coronary artery disease and obesity. (AR 24.)
The ALJ assigned little weight to opinions provided by Drs. Alley and Rose because their RFC assessments of Plaintiff were "based upon [Plaintiff's] physical condition and upon her functional abilities three years prior to the current alleged onset date" and completed prior to the alleged onset date. (AR 24.)
In contrast, the ALJ afforded great weight to opinions provided by state agency medical consultants at the initial and reconsiderations levels, as they were "consistent with the objective evidence and the entirety of the record." (AR 25.) These opinions stated that Plaintiff could "lift and carry 20 pounds occasionally and 10 pounds frequently"; "stand and walk about 6 hours in an 8-hour workday"; and "sit about 6 hours in an 8-hour work day." Critically, the opinions stated their "sitting standing walking, lifting, and carrying limitations were based upon physical examination, showing normal HEENT in cardiopulmonary exams, lumbar spine tenderness with full strength and intact reflexes and a normal EKG with no cardiac ischemia or arrhythmia. (6A) Their opinions are further supported by the diagnostic imaging that showed degenerative disc disease and facet arthrosis and [Plaintiff's] obesity that contributes to these limitations." (AR 25.)
Further, the ALJ assigned great weight to the state agency psychological consultants' opinions that Plaintiff's affective disorder was non-severe, as "they are consistent with the entirety of the record that shows no psychiatric treatment and few complaints of anxiety and depression." (Id.) Plaintiff did not allege a psychiatric impairment and although she had been prescribed antidepressant medication which was noted on her Social Security form, there was no subsequent follow up treatment as to a psychiatric complaint. (Id.)
Finally, in addition to the medical opinions discussed above, the ALJ took into account a Third Party Function Report provided by Plaintiff's son in determining her RFC. The ALJ assigned this opinion partial weight because although he found Plaintiff's son's statements regarding her activities to be credible due to his ability to directly observe them, he found "the statements regarding her limitations [to not be] credible because [Plaintiff's son] does not have the appropriate psychological or medical training to make exacting observations, diagnoses, and determine mental or physical limitations" and the "medical evidence and opinions do not support his opinion's severity." (AR 25-26.)
The ALJ concluded that "the above residual functional capacity is supported by the medical experts testimony and the diagnostic imaging showing degenerative disc disease and limitations due to claimant's obesity. It is also consistent with the entirety of the record." (AR 26.)
Finally, the ALJ considered the VE's testimony as described above and concluded that Plaintiff is capable of performing her past work as a receptionist, classified as a sedentary exertional level occupation by the Dictionary of Occupational Titles and as a light exertional level occupation as described by Plaintiff, as actually and generally performed. (AR 26.) The ALJ found that this work "would not require the performance of work-related activities precluded by [Plaintiff's RFC]." (AR 26.)
He, therefore, concluded that Plaintiff is "not disabled" as defined by the Social Security Act. (AR 26.)
VI. SCOPE OF REVIEW
Section 405(g) of the Social Security Act allows unsuccessful applicants to seek judicial review of a final agency decision. 42 U.S.C. § 405(g). The scope of judicial review is limited. See id. This Court has jurisdiction to enter a judgment affirming, modifying, or reversing the Commissioner's decision. See id.; 20 C.F.R. § 404.900(a)(5). The matter may also be remanded to the Social Security Administration for further proceedings. 42 U.S.C. § 405(g).
The Commissioner's decision must be affirmed upon review if it is: (1) supported by "substantial evidence" and (2) based on proper legal standards. Uklov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). If the Court, however, determines that the ALJ's findings are not supported by substantial evidence or are based on legal error, the Court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). Substantial evidence is more than a scintilla but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). It is "relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion." Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (finding substantial evidence in the record despite the ALJ's failure to discuss every piece of evidence). Moreover, "where evidence is susceptible to more than one rational interpretation," the ALJ's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509. Nevertheless, the Court "must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
VII. DISCUSSION
Plaintiff argues that the ALJ erred in failing to articulate clear and convincing reasons for discounting her credibility as to her subjective limitations. (ECF No. 18 at 5.) Specifically, she argues that three of the ALJ's reasons for discrediting her subjective limitations are not "clear and convincing": (1) that her limited daily activities cannot be objectively verified; (2) that more treatment would be expected given the severity of Plaintiff's pain complaints; and (3) that she takes only over-the-counter pain medication. (Id. at 7.) She asks the Court to reverse the ALJ's decision and order the payment of benefits, or in the alternative remand for further administrative proceedings. (Id. at 1; ECF No. 22 at 1-2.) Of note, Plaintiff has stipulated that "the ALJ fairly and accurately summarized the medical and non-medical evidence in the record, except as specifically stated in the Issues and Contentions." (ECF No. 18 at 4.) Accordingly, all relevant medical evidence cited by the ALJ is discussed only as is necessary to give context to the reasoning set forth in the ALJ Decision.
The Commissioner opposes Plaintiff's motion and cross moves for summary judgment, arguing the ALJ properly assessed Plaintiff's credibility. (ECF Nos. 19-1, 20-1.) For the reasons explained below, the Court concludes that the ALJ articulated "specific clear and convincing reasons" supported by substantial evidence in the record to discredit Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms.
A. Plaintiff's Claimed Limitations and ALJ's Findings
Plaintiff in her Motion for Summary Judgment has stipulated that "the ALJ fairly and accurately summarized the medical and non-medical evidence in the record, except as specifically stated in the Issues and Contentions." (ECF No. 18 at 4.) The Commissioner has provided a similar representation. (ECF. No. 19-1 at 1.) As such, the Court does not discuss the ALJ's summary of the medical and non-medical evidence in the record unless it applies to a particular issue herein.
As regards Plaintiff's limitations, the ALJ summarized the Adult Function Report as well as her testimony. (AR 22.) Of note, in the Adult Function Report Plaintiff stated she could lift less than 10 pounds, could not squat or kneel, would get short of breath walking or climbing stairs, and could walk 50 feet. (AR 22.) Plaintiff at the ALJ Hearing testified she could no longer work as a care giver because she could not walk, bend or lift as she previously did. She could not perform the job of a medical receptionist due to her sitting and standing limitations. She stated her main impairment is her back. (AR 22.) At the ALJ Hearing, Plaintiff elaborated that her biggest problem was her lower back due to a bulging disk with two compressed discs on it. (AR 51.) She described her average pain from her back to being a 10 on a scale from 0 to 10. The pain was severe and constant. (AR 52.) Plaintiff also testified she could sit for 10 minutes and stand for 15 minutes. She could walk a city block with the use of a cane. She takes medication for anxiety but is not treating with a psychiatrist. She does not have much energy, has difficulty sleeping and has to go to the restroom every couple of hours. (AR 22.)
The ALJ found that Plaintiff's statements concerning the intensity, persistence and limiting effects of the symptoms of the medically determined impairments were not entirely credible. (AR 22.) He concluded that after consideration of the entire record, Plaintiff had the RFC to perform light work as defined by 20 C.F.R. § 404.1567(b) and § 416.967(b) with stated exceptions. (AR 21.) He further found this assessment was supported by the medical experts' opinions, and the diagnostic imaging showing degenerative disc disease and limitations due to Plaintiff's obesity. (AR 26.) He went on to find that Plaintiff was capable of performing past relevant work as a medical receptionist and that such work does not require the performance of work related activities precluded by her RFC. (AR 26.)
Pursuant to both 20 C.F.R. § 404.1567(b) and § 416.967, light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time."
Further, the vocational expert testified that generally the receptionist position is considered by the Dictionary of Occupational Titles to be a sedentary position, while the receptionist position described by Plaintiff was considered by the Dictionary of Occupational Titles to be performed at the light exertion level. The ALJ in comparing the Plaintiff's RFC with the physical and mental demands of this (receptionist) work, found that the claimant was able to perform this work as it actually and generally is performed. Therefore, Plaintiff was not disabled. (AR 26.)
B. Relevant Law
The ALJ has a "well-settled role as the judge of credibility." Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Accordingly, the ALJ's assessment of a claimant's credibility and pain severity should be given "great weight." Dominguez v. Colvin, 927 F. Supp. 2d 846, 865 (9th Cir. 2003) (citing Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986)). The ALJ is not "required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
The Ninth Circuit has established a two-step analysis for the ALJ to evaluate the credibility of a claimant's testimony regarding subjective pain and impairments. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). First, the ALJ must determine whether the claimant presented objective medical evidence of an impairment or impairments that could reasonably be expected to produce the pain or other alleged symptoms. Id. Second, if the claimant satisfies the first step and there is no affirmative evidence of malingering, the ALJ may reject the claimant's testimony only if he provides "specific, clear and convincing reasons" for doing so. Id.; see also Parra, 481 F.3d at 750 (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). These reasons must be "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 n. 3 (9th Cir. 2010) (quoting Smolen, 80 F.3d at 1284)). These reasons must be supported by substantial evidence in the record. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
Although the second step has previously been termed a credibility determination, recently the Social Security Administration ("SSA") announced that it would no longer assess the "credibility" of an applicant's statements, but would instead focus on determining the "intensity and persistence of [the applicant's] symptoms." See SSR 16-3p, 81 FR 14166-01, 2016 WL 1020935 (Mar. 16, 2016) ("We are eliminating the use of the term 'credibility' from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character."); see also SSR 16-3p, 2016 WL 1237954, *1 (Mar. 24, 2016) (correcting SSR 16-3p effective date to read March 28, 2016). Social Security Rulings reflect the SSA's official interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although they "do not carry the force of law," Social Security Rulings "are binding on all components of the [SSA]" and are entitled to deference if they are "consistent with the Social Security Act and regulations." 20 C.F.R. § 402.35(b)(1); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted). As the Ninth Circuit recently acknowledged, SSR 16-3p "makes clear what our precedent already required: that assessments of an individual's testimony by an ALJ are designed to 'evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,' and not to delve into wide-ranging scrutiny of the claimant's character and apparent truthfulness." Trevizo, v. Berryhill, No. 15-16277, ___ F.3d ___, 2017 WL 2925434, at *9 n.5 (9th Cir. July 10, 2017); see also Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (Posner, J.) ("The change in wording is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character; obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence.") SSR 16-3p became effective after the issuance of the ALJ Decision and the Appeals Council denied review in the instant case. Compare SSR 16-3p, 2016 WL 1237954, *1 (Mar. 24, 2016) (correcting SSR 16-3p effective date to read March 28, 2016), with (AR 4 [ALJ Decision dated January 6, 2015]) and (id. at 1 [Appeals Council denial of review dated March 17, 2017]). Nonetheless, the applicability of SSR 16-3p need not be resolved here since the ALJ's evaluation of Plaintiff's subjective complaints in this case passes muster whether SSR 16-3p or its predecessor, SSR 96-7p, governs.
In weighing the credibility of the claimant's testimony, the ALJ may use "ordinary techniques of credibility determination." Id. The ALJ may consider at least the following when assessing a claimant's credibility: (1) her reputation for truthfulness; (2) inconsistencies in either her testimony or between her testimony and her conduct; (3) her daily activities; (4) her work records; and (5) testimony from physicians and third parties concerning the nature, severity and effect of her condition. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If an ALJ's credibility finding is supported by substantial evidence in the record, then a reviewing court must not "second-guess" it. Thomas, 278 F.3d at 959.
C. The ALJ's Credibility Determination of Plaintiff Was Properly Supported
The ALJ found that Plaintiff presented objective medical evidence of medically determinable impairments that could reasonably be expected to cause her alleged symptoms. (AR 22.) Additionally, the ALJ made no finding that Plaintiff was malingering, nor did any of the presented evidence suggest that she was malingering. Thus, Plaintiff satisfied the first step of the required two- step credibility analysis. However, the ALJ found that Plaintiff's statements "concerning the intensity, persistence and limit ing effects of [her] symptoms [to be] not entirely credible." (AR 22.) Therefore, this issue turns on whether the ALJ provided "specific, clear and convincing reasons" supported by substantial evidence in the record for discounting Plaintiff's subjective pain and limitations testimony. See Tommasetti, 533 F.3d at 1039.
Plaintiff argues that the ALJ erred when he "[1] rejected [Plaintiff's] subjective complaints stating that her limited daily activities cannot be objectively verified. The ALJ also [2] rejected [Plaintiff's] complaints stating that one would expect more treatment in light of the severity of [her] pain complaints. The ALJ also found [her] not credible because [3] she only took over-the-counter medications." (ECF No. 18 at 7.)
The Court RECOMMENDS a finding that the ALJ properly set forth "specific, clear and convincing reasons" supported by substantial evidence in the record for rejecting Plaintiff's subjective limitations. The ALJ stated the following reasons for finding Plaintiff's testimony to not be credible: (1) the objective medical evidence and observations contained in the record did not support the severity of her physical symptoms and limitations (AR 22-26); (2) her alleged impairments did not significantly interfere with her daily activities (AR 23) and (3) her treatment modalities were conservative and consisted of over-the-counter pain medication and a suggestion to attend physical therapy. (AR 23.) The Court considers the validity of the ALJ's stated reasons below.
1. Medical Evidence
When the ALJ finds that medically determinable impairments could reasonably be expected to cause a claimant's alleged symptoms, the ALJ may not reject a claimant's testimony solely based a lack of support of medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (finding that an ALJ cannot reject a claimant's testimony simply because it is unsupported by objective medical evidence); Burch, 400 F.3d at 681. However, when assessing a claimant's credibility, the ALJ may consider inconsistent medical evidence as a factor in his credibility analysis. See Lingenfelter, 504 F.3d at 1040 (in determining credibility, the ALJ may consider "whether the alleged symptoms are consistent with the medical evidence"); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects."); Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1196 (9th Cir. 2004) (ALJ properly relied on objective findings and physician's opinions to discredit claimant's testimony regarding functional limitations).
The ALJ first addressed Plaintiff's credibility regarding the severity of her physical symptoms and limitations in light of the objective clinical findings and observations contained in the record and found that they did not support her claims. (AR 22-23.) Referring to various parts of the record, he concluded that the physical examinations did not support the limitations for a number of reasons. (AR 22-23 [citing Exs. 5F (office treatment records from Vista Community Clinic, Plaintiff's primary care location dated February 2, 2012 to February 9, 2013); 7F (progress notes from a February 22, 2013 visit to kidney specialist Naing T. Kyaw, MD dated February 22, 2013); 10F (Emergency Department notes from Palomar Medical Center visit on May 18, 2013 due to heart palpitations and shortness of breath); and 27F (Emergency Department records dated September 20, 2014 to October 22, 2014 documenting her September 22, 2014 coronary angioplasty and a October 22, 2014 fall)].) The ALJ noted that "imaging reveals minimal findings." (AR 19 [citing Exs. 5F; 18F (April 10, 2013 radiology report regarding renal ultrasound); 22F (radiology report of MRI of lumbar spine without contrast dated January 25, 2013); 24F (radiology report regarding pelvic x-ray dated October 22, 2014); 25F (radiology report of MRI of lumbar spine with three views dated October 22, 2014); and 27F].) Plaintiff's balance and gait were intact and physical examination showed a normal heart rate and rhythm. (AR 22.) The ALJ noted that despite pain complaints, "physical examinations yielded minor findings." (AR 22.) For example, an October 22, 2014 x-ray of Plaintiff's lumbosacral spine after a fall "showed mild loss, but there was no acute fracture. Treatment notes stated that claimant was quite reassured by the imaging studies and felt comfortable with discharge home." Further, treatment records noted lower back pain that was relieved with over-the-counter medication and rest. (AR 22 [citing Ex. 5F].) Additionally, the ALJ noted that the RFC incorporated any limitations due to Plaintiff's degenerative disc disease, which is documented throughout the record. (AR 22.)
Further, an ALJ may consider medical opinions about the nature, severity, and effect of symptoms in evaluating the credibility of plaintiff's statements. See Smolen, 80 F.3d at 1284. Such medical opinions are probative evidence when weighing the credibility of subjective complaints. 20 C.F.R. § 416.929(c)(3) (describing factors relevant to credibility); see also Rollins, 261 F.3d at 857 (noting that the ALJ appropriately considered medical opinions contradicting claimant's pain testimony in assessing credibility).
Here, The ALJ also considered the opinions of Medical Expert Dr. Alpern and the state agency medical and psychological consultants that all assessed Plaintiff as being able to perform work at the light exertional level and contradict Plaintiff's allegations of the severity of her limitations. (AR 23-25 [citing Exs. 5A (Reconsideration of Disability Determination dated September 23, 2013); 6A (Reconsideration of Disability Determination dated October 2, 2013); and summarizing Dr. Alpern's ALJ Hearing testimony].) In particular he gives partial weight to Dr. Alpern's opinion regarding claimant's ability to lift, carry, sit, stand, walk, climb etc. as being consistent with the objective medical record. (AR 24.) Despite Plaintiff having to undergo another stenting procedure in September of 2014, Dr. Alpern testified that her condition was stable and that her procedure did not change his opinion. (AR 23.) The ALJ assigned great weight to the state agency medical consultants as regards their opinions as to Plaintiff's ability to sit, stand, walk, lift, and carry as their opinions were supported by the objective medical record. (AR 25 [see AR 64-65, 67-69, 75-76, 78-81 93-95, 105-108.].) Specifically, the ALJ found that their opinions as regards sitting, standing, walking, lifting and carrying limitations were based upon physical examinations, showing a normal HEENT in cardiopulmonary exams, and normal EKG with no cardiac ischemia or arrhythmia. (AR 25.) Plaintiff does not dispute these findings nor the ALJ's summary of the medical records. (See ECF No. 18 at 4.) Therefore, IT IS RECOMMENDED that the Court find the ALJ provided a "specific, clear and convincing" reason supported by substantial evidence for discounting Plaintiff's credibility as to her subjective limitations on this ground in light of the additional factors discussed below.
In addition to Dr. Alpern's limitations regarding Plaintiff's ability to lift, carry, sit, stand, walk, he further opined that claimant could never climb ropes, ladders or scaffolds, and only occasionally could she climb ramps and stairs, balance, stoop, kneel, crouch or crawl. The ALJ agreed with these limitations in part because Plaintiff's obesity contributes to these limitations in that her body habits make performing these functions difficult. (AR 23-24.) The ALJ also disagreed with other of Dr. Alpern's opinions regarding limitations having to do with heights, working with vibrating tools and the like because the ALJ believed the claimant to be more limited due to her coronary disease and obesity. (AR 24.) The Court notes that instead of discounting Plaintiff's limitations as regards obesity and coronary disease, he is discounted Dr. Alpern's opinion in favor of Plaintiff's subjective limitations.
2. Conservative Course of Treatment
The Ninth Circuit has held that the conservative nature of plaintiff's treatment, such as treatment for pain with over-the counter medication, provides a clear and convincing reason for rejecting plaintiff's statements concerning the severity of her impairments. Parra, 481 F.3d at 751 (finding that treatment with over-the-counter pain medication is sufficient to discount a claimant's testimony regarding the severity of the impairment); see Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (treatment of pain with Ibuprofen is considered a type of "conservative treatment").
Plaintiff takes issue with the ALJ's credibility findings as to the degree of back pain she suffers. Specifically she points to the ALJ's discounting of her credibility because she takes only over-the-counter medications and his conclusion that one would expect more treatment in light of the severity of her pain complaints. (ECF No. 18 at 7-9.) The ALJ in his opinion noted that treatment records showed pain complaints. However he found the physical examinations yielded minor findings. (AR 22.) He then detailed examples contained in her treatment records which depicted Plaintiff suffering from mild to moderate back pain. (AR 22-23 [citing AR 443 (records from January 11, 2013); 456 (records from May 5, 2012)].) As part of this analysis, the ALJ stated that per Plaintiff's treatment records on December 21, 2012, "over the counter medication and rest relieved the symptoms." (AR 22 [citing AR 443].) Later in his decision he elaborates that "treatment modalities have been conservative and consisted of over-the-counter pain medication and a suggestion to attend physical therapy. Arguably, with claimant's alleged severity of pain and limitations, one would expect more significant findings on both the diagnostic imaging and physical exams as well as more complex treatment." (AR 23.)
A review of the record shows that Plaintiff consistently described her lower back pain as mild or moderate to healthcare providers both before and after the specific examples cited by the ALJ in his Decision. (See, e.g., AR 428 [on February 9, 2013, pain "described as moderate" and "relieved by resting"]; 437 [on January 11, 2013 pain reported as a "tenderness, moderate pain with motion"]; 699 [on April 2, 2014, only noted left shoulder pain due to Plaintiff "assisting family members in surgical recovery and doing a lot of lifting" which was treated with over-the-counter tylenol]; 724 [on October 14, 2014, a week before Plaintiff's fall discussed below, back pain noted as a "3/10," i.e. a 3 out of 10]; 686 [on November 3, 2014, "moderate pain with motion"].) This is in sharp contrast to Plaintiff's rating of her back pain level as being on average at a "10"/"severe" at the ALJ Hearing:
ALJ: Okay. If I have you a scale of 0 to 10, with 0 being no pain, 10 being so bad you'd have to go to the emergency room, in your back, what's the average pain that you have?
P: 10.
ALJ: A 10?
P: Unless I take - well, they gave me pain pills, but I can't live on those because that messes up my kidneys.
ALJ: Okay so the pain is pretty severe then?
P: Yeah, it is.
ALJ: And it's constant?
P: Constant.
(AR 52.) Based on this brief exchange, Plaintiff argues with the ALJ improperly discounted her pain due to her use of over-the-counter pain medication because as she testified at the ALJ Hearing, she cannot take stronger drugs due to her stage III kidney disease. (ECF No. 18 at 5, 9 [citing AR 52].) It appears Plaintiff is trying to set forth a "good reason" as to why she was restricted to conservative treatment for her pain. See Smolen, 80 F.3d at 1284 ("Where a claimant provides evidence of a good reason for not taking medication for her symptoms, her symptom testimony cannot be rejected to not doing so.")
However, Plaintiff does not cite to any medical records that support the allegation that she was unable to take stronger pain medication due to her stage III kidney disease. Instead she cites to a portion of the record for the proposition that she was prescribed Norco for pain. (ECF No. 22 at 5-6 [citing AR 717-18].) However, after the Court's review of the record, it appears Plaintiff was prescribed Norco as the result of a specific incident - a mechanical "hard fall" that occurred on October 22, 2014, a month before the ALJ Hearing, which had caused increased pain due to the fall's "acute exacerbation of chronic low back pain." (AR 756 [listing diagnosis as "1. Acute fall 2. Acute Exacerbation of Chronic Low Back Pain]; see also AR 753-54 [MDM Summary dated October 22, 2014 stating that Plaintiff's pain after a mechanical fall "was well managed in the emergency room after one hour on the conscious discharge with Norco for home"]; 687 ["patient states pain is worse" after the fall].) In fact, the medical records cited by Plaintiff for the proposition that she was prescribed Norco are from a follow up visit a week post-fall. (See AR 717-718 [November 3, 2014 records for back pain stemming from "hard fall" one week prior]; 753-58 [Emergency Department records documenting Plaintiff's fall and subsequent prescription of Norco].) Of note, the ALJ relied on this October 22, 2014 Emergency Department exam documenting her fall (as well as other physical examinations) in finding that the objective medical evidence and observations in the record did not support the claimed severity of Plaintiff's symptoms. (AR 22-23 [citing Exhibit 27F/2].) Any attempt by Plaintiff to construe the fact that she was prescribed Norco as an ongoing course of treatment for her lower back pain when in reality she was prescribed Norco as a result of increased pain due to one specific incident, is both disingenuous and refuted by her own medical records. The record establishes that Plaintiff primarily used over-the-counter medical to control her pain. (See, e.g., AR 435 [January 11, 2013, "symptoms are relieved by over the counter medication: ibuprofen"]; 441 [on December 21, 2012, "symptoms are relieved by over the counter medication: ibuprofen and rest"]; 491 [On February 22, 2013, Plaintiff reported she had been taking "significant amount[s] of ibuprofen for her back pain"]; 567 [On August 2, 2013, "chronic back pain currently managed with tylenol PRN, some exercise and rest"]).
The ALJ as part of the Step Two analysis noted Plaintiff alleged disability due to chronic kidney disease. Associated symptoms include recent urination. Treatment records noted she brought a copy of an ultrasound that showed cholelithiasis. She refused a referral to a gastrointestinal specialist because it did not bother her. (AR 19, 583.)
Further, a review of the record provides context for Plaintiff's comment at the ALJ Hearing regarding the fact that she is unable to take certain pain pills because they "messed up [her] kidneys." (See AR 52.) In treatment notes from February 22, 2013 cited by the ALJ Decision (Ex. 7F), Plaintiff informed a kidney specialist that she had stopped taking nonsteroidal anti-inflammatory drugs ("NSAIDs"), i.e. Ibuprofen, as she learned they had long-term kidney side effects. (AR 491 [stated she stopped taking "significant amount[s] of ibuprofen for her back pain"]; 493 [kidney specialist advised Plaintiff to restrict NSAID usage].) However, once she was counseled by a kidney specialist against taking NSAIDs like Ibuprofen, her medical records do not reflect that stronger pain medication was subsequently prescribed to regularly treat her lower back pain. Instead, they show that Plaintiff then proceeded to regularly manage her back pain via another over-the-counter pain medication, Tylenol, which is not an NSAID. (See 493 [kidney specialist advised Plaintiff "to restrict NSAID use" on February 22, 2013]; 567 [on August 2, 2013 medical records state her "chronic back pain currently managed with tylenol PRN, some exercise and rest"].) Nothing in the record suggests that Plaintiff was unable to take stronger than over-the-counter pain medication to regularly treat her back pain.
Plaintiff next claims in response to the ALJ's assertion that "one would expect more . . . complex treatment" given the severity of Plaintiff's alleged limitations and pain, that she "has had extensive treatment including 2 coronary bypass surgeries, one as recently as 2014. In addition, even according to the medical expert that testified at the ALJ Hearing, a significant amount of Plaintiff's limitations can be attributed to her super morbid obesity with a BMI of 50. AR 55. The Commissioner specifically mandates that an obese individual's failure to lose weight is not to be held against them." (ECF No. 18 at 7-8.)
In her motion, Plaintiff includes the contention that the ALJ could not hold her failure to lose weight against her. (ECF No. 18 at 8-9). However she cites to nothing in the record where the ALJ discounted Plaintiff's testimony based on failure to lose weight. A review of her testimony, as well as the ALJ Decision, confirms no such was reason asserted by the ALJ.
First, the Court initially notes that the Plaintiff does not point to any specific portion of the record whereby the ALJ discounted Plaintiff's testimony regarding limitations that she attributes to obesity and/or her coronary bypass surgeries. In fact, her testimony at the ALJ Hearing as regards her inability to do her prior medical receptionist job, or any job for 8 hours a day reveals this exchange:
ALJ: Do you think you could go back to work as a caregiver?
P: No.
ALJ: Why?
P: Because I can't walk like I use to. I can't bend over. And I can't lift anybody anymore.
ALJ: Okay. How about the medical receptionist job?
P: No.
ALJ: Do you think you could do that?
P: Because I can't sit and stand that much anymore. Plus, you know, you have to do other things besides that, like lifting and stuff and
ALJ: Do you think that there would be any job that you could do eight hours a day five days per week?
P: No.
ALJ: And what would be the biggest problem with that?
P: My back. Because I have a bulging disc with two compressed disc on it.
(AR 50-51.) In this exchange, Plaintiff identifies her back pain as the primary condition inhibiting her ability to work. The only mention of her obesity is a short colloquy about her weight range. In fact the ALJ complimented her on her weight loss, which she attributed to walking. (AR 46-47.) As regards her heart problems, she testified that a stent helped her pain in her arm. She mentioned she was also on blood thinners. (AR 47-48). From her testimony, there appears to be no specific mention of obesity or heart problems that caused the severity of limitations affecting her ability to perform her former job as a receptionist. Instead, all the emphasis is placed on her back pain. (AR 52.)
Second, the ALJ specifically relied on Plaintiff's claim that her main impairment is her back. (AR 22.) Therefore, the extent to which the ALJ is discounting Plaintiff's credibility as regards the severity of her limitations to work, he is focusing on the degree of her pain, as well as her testimony about her inability to stand and sit for longer than 10- 15 minutes, which Plaintiff blames on her back pain. Accordingly, it is clear that the ALJ's statement that "given the severity of pain and limitations, one would expect more . . . complex treatment" is in regards to the lack of more aggressive treatment given the alleged severity of Plaintiff's back pain. (See AR 23.)
The record supports the ALJ's reasoned conclusion that Plaintiff's treatment plan for pain was conservative and largely consisted of over-the-counter pain medication. See Batson, 359 F.3d at 1198 ("When the evidence before the ALJ is subject to more than one rational interpretation, [courts] must defer to the ALJ's conclusion."). As such, IT IS RECOMMENED that the Court find the ALJ provided a "specific, clear and convincing" reason supported by substantial evidence for discounting Plaintiff's credibility as to her subjective limitations on this ground. See Parra, 481 F.3d at 751; Carmickle, 533 F.3d at 1162.
3. Plaintiff's Daily Activities
Plaintiff contends that the ALJ improperly rejected Plaintiff's complaints because her alleged limitations did not significantly interfere with her daily activities. (ECF No. 18 at 7; ECF No. 22 at 4.) In his Decision, the ALJ found that Plaintiff's alleged impairments do not significantly interfere with her activities of daily living. (See AR 23.) In his analysis, he listed a number of daily activities self-reported by Plaintiff in an Adult Function Report, and then stated that:
Although the claimant has described daily activities, which are limited, two factors weigh against considering these allegations to be strong evidence in favor of finding the claimant disabled. First, allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty. Secondly, even if the claimant's daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant's medical condition as the alleged severity is not documented throughout the record.
(AR 23.) Plaintiff argues that nowhere in the regulations does it say an ALJ can discount subjective pain complaints because a claimant's daily activities cannot be objectively verified. (ECF No. 18 at 7). In her Opposition to the Commissioner's Cross Motion, Plaintiff adds that both of the above reasons are illegitimate. (ECF No. 22 at 4.) Further, Plaintiff argues that by making these statements, the ALJ apparently believed that the daily activities, if true, were of a disabling level. (Id.)
First, the Court agrees with Plaintiff that the fact that the Plaintiff's daily activities cannot be objectively verified is not a legally sufficient reason for the ALJ to reject Plaintiff's subjective complaints. The quoted justification (see above) for the ALJ's credibility finding as to Plaintiff's daily activities has been used in almost identical form by other ALJs and is frequently rejected in this Circuit. See, e.g., Garcia v. Astrue, No. 12CV992-WQH BLM, 2013 WL 1797029, at *15 (S.D. Cal. Mar. 13, 2013), report and recommendation adopted, 2013 WL 1797032 (S.D. Cal. Apr. 26, 2013); Berry v. Colvin, No. 13-0979-W(WVG), 2014 WL 12531193, at *14 (S.D. Cal. Apr. 1, 2014), report and recommendation adopted, 2014 WL 12531194 (S.D. Cal. May 7, 2014); Dadian Wallis v. Berryhill, No. 1:15-CV-01670-JLT, 2017 WL 527895, at *8-9 (E.D. Cal. Feb. 9, 2017); Vital v. Colvin, No. CV 16-923 MRW, 2016 WL 6892395, at *4 (C.D. Cal. Nov. 21, 2016), judgment entered, 2016 WL 6879248 (C.D. Cal. Nov. 21, 2016) ("The ALJ's standard (and standardly confusing) paragraph about daily activities provided no explanation that the Court can "meaningfully review" on appeal."); McKim v. Astrue, No. 11CV5815-RBL-JRC, 2012 WL 5250096, at *4 (W.D. Wash. Sept. 4, 2012) (frequent use of this language in ALJ Decisions indicates that it "is based more on an archived form than on the particular claimant who was before the ALJ"), report and recommendation adopted, 2012 WL 5249772 (W.D. Wash. Oct. 24, 2012). Such a standard is not required by law. See Berry, 2014 WL 12531193, at *14 ("Objective verifiability to a reasonable degree of certainty is not a requirement imposed by law in a Social Security case."); Moseley v. Colvin, No. ED CV 13-0282 JCG, 2013 WL 6044316, at *2 (C.D. Cal. Nov. 12, 2013) (objectively verifiable standard "imposes an extremely heavy, and unwarranted burden on Plaintiff."). That "a fact cannot be verified objectively provides little evidence to support the conclusion that the individual is not being truthful about such fact in any particular instance." Garcia, 2013 WL 1797029, at *15 (quoting McKim, 2012 WL 5250096, at *4). Thus, the ALJ applied an incorrect and heightened standard in considering Plaintiff's daily activities and associated limitations.
The ALJ's second reason, that it is "it is difficult to attribute that degree of [claimed] limitation to the claimant's medical condition as the alleged severity is not documented throughout the record" is similarly unavailing. The ALJ failed to specify what he "attributes that degree of limitation to" other than Plaintiff's medical condition; thus, he provides no support for his adverse credibility finding on this ground. See Berry, 2014 WL 12531193, at *14 ("Without providing a detailed explanation of 'other reasons,' merely stating that other reasons could attribute to Plaintiff's condition was not a clear and convincing reason."); McKim, 2012 WL 5250096; see also Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (noting the ALJ cannot rely on general findings, but "must specifically identify what is credible and what evidence undermines the claimant's complaints"). This vague and conclusory statement falls far short of a clear and convincing reason. All that is left is the ALJ's contention that plaintiff's claimed severity of limitations are not supported by the limited medical evidence. A lack of medical evidence, however, while a legitimate consideration, does not alone constitute a clear and convincing reason for discrediting plaintiff's testimony. See Burch, 400 F.3d at 681 ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.").
However, the ALJ's application of the two reasons highlighted above is harmless error. See Carmickle, 533 F.3d at 1162-63 (invalid reason given for credibility determination harmless where ALJ stated other, valid reasons for the determination); Batson, 359 F.3d at 1197 (finding error harmless when it did "not negate the validity of the ALJ's ultimate conclusion that [claimant's] testimony was not credible"); see also Molina, 674 F.3d at 1115 ("[I]n each case we look at the record as a whole to determine whether the error alters the outcome of the case."). In light of the substantial evidence supporting the ALJ's conclusions on Plaintiff's credibility, the Court does not think that the ALJ's statement of the two above reasons affected the ALJ's conclusion as to the inconsistencies between Plaintiff's limitations and her daily activities or requires remand.
An ALJ may discredit a claimant's testimony when she reports participation in everyday activities indicating capacities that are transferable to a work setting. See Molina, 674 F.3d at 1112-13; 20 C.F.R. § 404.1529(c)(3)(i). Further, the inconsistency between a claimant's alleged symptoms and her daily activities, is sufficient to support a finding that Plaintiff was not entirely credible. See Lingenfelter, 504 F.3d at 1040 (in determining credibility, an ALJ may consider "whether claimant engages in daily activities inconsistent with alleged symptoms"); Molina, 674 F.3d at 1112-13 (affirming the ALJ's adverse credibility determination where the plaintiff's symptom testimony was inconsistent with her daily activities throughout the disability period and the medical evidence). Specifically, daily activities may be grounds for discrediting a claimant's testimony when a claimant "is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting." Fair, 885 F.2d at 603. Even when such activities suggest some difficulty functioning, the ALJ may discredit a claimant's testimony to the extent that they contradict claims of a totally debilitating impairment. See Turner, 613 F.3d at 1225; Valentine, 574 F.3d at 693.
Plaintiff does not refute that she is able to engage in the activities that the ALJ identified in his Decision. (See AR 23.) In evaluating Plaintiff's activities of daily living, the ALJ noted that Plaintiff is able to drive, use public transportation, walk, leave home without assistance, shop for groceries and personal items, and manage her finances. He also found she could do simple household chores, like dust, do laundry, wash dishes, scrub counter tops and sinks, and prepare simple meals. She can also handle activities of personal care. The ALJ made these findings from an Adult Function Report completed by Plaintiff. (AR 23 [citing Ex. 4E].) Plaintiff is able to engage in all of these activities despite the limitations she has noted in the Adult Function Report and at the ALJ Hearing.
Although the Adult Function Report contains all the daily activities the ALJ found she could perform without significant interference from her alleged impairment (see AR 23), it also contains additional limitations Plaintiff claims which would further limit these activities. For example, in that Adult Function Report Plaintiff claims she is unable to sit, stand, walk or bend for any length of time, unable to get on the ground and get up again. She needs to use a cane at times due to left sided sciatica and lower back pain. She has shortness of breath with limited movement or exercise. She also has bilateral foot unsteadiness due to tumors. (AR 301.) She cannot do the most simple of everyday living things. (AR 302.) She has limited walking, standing, sitting, lifting. (AR 305.) She has limited ability to sit, stand, walk, and she must be near a bathroom. (AR 306.) Further, at the ALJ Hearing, Plaintiff testified she could sit for 10 minutes and stand for 15 minutes. She could walk a city block with the use of a cane. She takes medication for anxiety but is not treating with a psychiatrist. She does not have much energy, has difficulty sleeping and has to go to the restroom every couple of hours. (AR 22.)
Plaintiff contends for the first time in her Opposition that the ALJ believed that her daily activities, if true, were of a disabling level. (ECF No. 22 at 4.) The Court finds this interpretation contrary to the ALJ's express finding. The ALJ's first sentence, before he lists the daily activities which he found Plaintiff could perform, specifically states, "In terms of the claimant's alleged impairments, these do not significantly interfere with her activities of daily living." (AR 23 [emphasis added].) This statement leaves no doubt that the ALJ found the Plaintiff's ability to engage in daily activities such as being able to drive, walk, use public transportation, shop for groceries, do simple household chores, and prepare meals, to be inconsistent with her alleged impairments and asserted limitations. See Lingenfelter, 504 F.3d at 1040 (inconsistency between a claimant's alleged limitations and her daily activities is sufficient to support a finding that Plaintiff was not entirely credible); Molina, 674 F.3d at 1112 (daily activities that are inconsistent with alleged symptoms are a relevant credibility consideration.) As such, the Plaintiff's activity level suggested she had a greater overall functional capacity then she alleged.
Although the Commissioner cited to numerous records showing Plaintiff was able to exercise two to three times a week, because the ALJ did not rely on this reason in support of his credibility determination, the Court cannot rely on it. See Connett, 340 F. 3d at 874. --------
Therefore, IT IS RECOMMENED that the Court find the ALJ provided a "specific, clear and convincing" reason supported by substantial evidence for discounting Plaintiff's credibility as to her subjective limitations on this ground. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1991) (holding that an indication that a claimant is able to take care of personal needs, prepare meals, do easy housework, and shop for groceries can be seen as inconsistent with a condition that precludes all work activity); Burch, 400 F.3d at 680-81 (stating that the ALJ may discredit claimant's testimony if he engages in daily activities involving skills that could be transferred to the workplace).
VIII. CONCLUSION
Based on the above reasoning, IT IS RECOMMENED that the Court find the ALJ properly set forth three "specific, clear and convincing" reasons supported by substantial evidence for discounting Plaintiff's credibility as to her subjective limitations.
Accordingly, the undersigned Magistrate Judge RECOMMENDS that Plaintiff's motion for summary judgment (ECF No. 18) be DENIED and that Commissioner's cross-motion for summary judgment (ECF No. 19) be GRANTED.
This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(1).
IT IS ORDERED that no later than July 28 , 2017 , any party to this action may file written objections with the Court and serve a copy to all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than August 11 , 2017 . Dated: July 14, 2017
/s/_________
Hon. Bernard G. Skomal
United States Magistrate Judge